The motion for a new trial in the County Court brings up for review exceptions and alleged errors committed upon the trial to the prejudice of defendant, and the motion in arrest of judgment under section 331 of the Code of Criminal Procedure authorizes the inquiry as to the indictment, “ Do the facts therein stated constitute a crime ? ” Not in this case the crime named, “ Manslaughter in the first degree,” but any crime.
I do not see in the record before this court any error, committed upon the trial, subject to serious criticism, except the admission of testimony of the witness Knipp as to what was said by John Maine, not apparently in the hearing of defendant, “ Come down to the corner under the light and 1 will give you all you want, or what you want.” This seems to have been said to Frank Bower and to James Murphy, who was killed, and bears upon the intent in the minds of these three persons in getting together, but not upon the intent of the defendant, nor upon his knowledge of the intent of the others in their assembling. If the testimony in the case left the question of intent on the part of the defendant anyway in doubt, or the situation disclosed to the defendant after he arrived upon the scene in any doubt, or if the testimony, leaving out this statement, did not beyond all doubt abundantly show the defendant guilty of a crime *144■of a grade not less than manslaughter, I think it would be the duty ■of the court, for this error, to grant a new trial. But, as the evidence stands, this piece of evidence becomes immaterial. With this testimony out, no other conclusion on the part of the jury was possible, and it cannot be claimed that this in any degree influenced them.
The other question, “ Do the facts stated in the indictment constitute a crime % ” must bfe, I think, answered in the affirmative. If ■this indictment had not characterized the crime described by the stated facts as “ manslaughter,” and had used the words with “malice aforethought,” “malice prepense” or “premeditated •design,” it .would have been a sufficient statement of facts and intent to charge murder in the first degree. (Fitzgerald v. People, 37 N. Y. 413 ; People v. Conroy, 97 id. 62.) The absence of apt words characterizing the acts to have been done with “ malice aforethought,” and the declaration that the crime intended to' be charged is “ manslaughter,” is a sufficient declaration that the homicide was accomplished without design to effect death. Here a homicide is charged, and charged te have been committed under circumstances which preclude the idea of its being either justifiable or excusable, and the stated facts are insufficient to make it murder in either the first or second .degree, and that seems to be the exact definition of “manslaughter.” Section 188 of the Penal Code provides : “In a case other, than one of those specified in sections one hundred and eighty-three, one hundred and eighty-four and one hundred and •.eighty-five (murder in 1st and 2nd degrees), homicide, not being justifiable or excusable, is manslaughter.”
The omission to declare in the indictment the ameliorating features which reduce homicide to the grade of manslaughter, by stating it to have been produced “ without a design to effect death,” or “ in the heat of passion,” will not vitiate the indictment when the homicide is charged as a crime committed under circumstances which preclude the idea of its being justifiable or excusable. The whole function of a proper indictment is seéii to be present when it complies with the requirement of section 284 of the Code of Criminal Procedure, when “ the act or omission, charged as the crime, is plainly and concisely set forth.” When “ the act or omission, charged as the crime, is stated with such a degree of certainty as to enable the *145court to pronounce judgment upon a conviction, according to the right- of the case.”
The judgment and conviction should -he affirmed and the case remanded to the County Court for further action.
All concurred.
Judgment of conviction affirmed.